by Harold P. Coxson Jr. and C. Thomas Davis, Esqs., Olgetree Deakins
The National Labor Relations Board (NLRB) has announced its final rule on Notification of Employee Rights under the National Labor Relations Act (NLRA). The proposed rule had been pending since December of last year.
Now that it is final, employers have until Nov. 14 to put up an official poster stating that employees have a right to form or join a union. The NLRB poster can be downloaded at www.nlrb.gov/poster.
The final rule requires employers that are subject to the NLRA to post and maintain the NLRB notice in conspicuous places, including all places where notices to employees are customarily posted, and to take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material or otherwise rendered unreadable.
Can employers post a notice, too?
Employers have the right to post their own notices expressing their views on unionization, too. In its notice of the final rule, the NLRB stated:
“One employer suggests that if the notice retains its current emphasis favoring union activity and disfavoring the freedom to refrain from such activity, employers will need to post their own notices that emphasize and elaborate on the right to refrain.
“… NLRA Section 8(c) protects employers’ right to express any ‘views, argument, or opinion’ ‘if such expression contains no threat of reprisal or force or promise of benefit.’ The rule does not affect this right. Therefore, if an employer is concerned that employees will get the wrong impression, it may legally express its opinion regarding unionization as long as it does so in a noncoercive manner.”
Addressing employer concerns
For the most part, the final rule differs only slightly from the initial proposed rule.
The most significant change is that the final rule deletes the requirement that employers must distribute the notice via email, voice mail, text messaging or related electronic communications unless they customarily communicate with their employees in that manner.
Other significant changes include clarifications of the notice detailing:
- Employee rights protected by the NLRA and unlawful conduct on the part of unions
- Allowing employers to post notices in black and white as well as in color
- Clarification of the rule’s requirements for posting notices in foreign languages.
The final rule states: “Where 20 percent or more of an employer’s workforce is not proficient in English and speaks a language other than English, the employer must provide notice … in the language the employees speak. If an employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language.”
The NLRB will provide translations of the notice.
The final rule lists a number of exemptions from the notice posting requirement (including state or political subdivisions and labor organizations).
It states that federal contractors may comply with the provisions of the requirement by posting the notices required under the U.S. Department of Labor’s notice posting rule, 29 CFR Part 471. No second notice will be necessary.
The NLRB brushed aside opponents’ argument that the board lacked the statutory or legal authority to require a general notice to be posted in the workplace. It cited Section 6 of the NLRA, which provides that “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act.”
Penalties for noncompliance
If an employer fails to post the notice, the final rule imposes sanctions.
An employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. The final rule clarifies that an unfair labor practice case will typically be closed without further action if an employer was unaware of the rule and complies when requested.
The board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.
If an employer knowingly and willfully fails to post the notice, that may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
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